Seven mental health professionals have evaluated Warren Lee Hill, a Georgia inmate scheduled to be executed next Monday, and all seven have determined that Hill is intellectually disabled, the clinical term for the disability that was known as “mental retardation” at the time Atkins was decided. Yet, thanks to several legal loopholes that effectively cut Hill off from the Constitution, it is likely that his execution will proceed.

Although Atkins held that executing the intellectually disabled is unconstitutional, it also left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Georgia took this license and ran with it, requiring inmates such as Hill to overcome a virtually impossible burden of proof before a court will deem them to be intellectually disabled. The state, in effect, exempts itself from the Constitution’s ban on executing men such as Hill.

And even if Hill could somehow overcome this first loophole, he still has to contend with a federal law enacted for the very purpose of making it easier for states to kill people. Under the Antiterrorism and Effective Death Penalty Act, Hill must show that “but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense” in order to pursue his claim in federal court. But Hill doesn’t claim he is innocent of the crime he was convicted of, merely that Georgia must comply with the constitutional ban on executing the intellectually disabled.

In other words, absent action from the Supreme Court, Hill is likely unable to access his constitutional rights — and he will soon be executed in direct violation of them.

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